Drafting Enforceable Premarital and Postmarital Agreements - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A Drafting Enforceable Premarital and Postmarital Agreements Structuring Choice of Law and Forum Clauses, Evaluating State Law Similarities and Differences, Navigating Estate Planning Issues WEDNESDAY, FEBRUARY 1, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Richard G. Kent, Partner, Meyers Breiner & Kent , Fairfield, Conn. Jennifer M. Riemer, Partner, Walzer Melcher , Woodland Hills, Calif. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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D RAFTING 10/2/13 P REMARITAL AND P OSTMARITAL A GREEMENTS Strategies for Crafting an 5 Enforceable Agreement

P RESENTERS Richard G. Kent 10/2/13 Meyers Breiner & Kent Fairfield, Connecticut 203-255-9410 rkent@mbnllp.com Jennifer M. Riemer Walzer Melcher LLP Woodland Hills, California 818-591-3700 jmr@walzermelcher.com 6

O VERVIEW  Differences between premarital 10/2/13 agreements and postmarital agreements. (RGK)  How to discuss and negotiate these agreements (RGK)  Structuring the agreement (JR)  Choice/conflict of laws for multistate or international couples (JR)  Getting retained and paid (JR) 7

W HO N EEDS A P RENUP ?  A party who wants to protect 10/2/13 separate assets. (JR)  A party who has a professional practice or other service business, and wants to avoid or limit a community interest. (JR)  The other party has substantial debt, or an alimony obligation from a prior marriage. (JR) 8

B ENEFITS OF A P RENUP  Promotes communication about finances 10/2/13 and expectations of each party before marriage. (RGK)  Provides certainty as to their rights and obligations on divorce. (RGK)  May reduce, or could increase chances of litigation upon divorce. (RGK) 9

W HAT A P RENUP C AN D O  Keep premarital property off limits 10/2/13 (JR)  Limit or waive spousal support/alimony. (JR)  Specify rights on death and to life insurance. (JR) 10

R ISKS OF P ROPOSING O NE  Neither party appreciates an 10/2/13 attorney’s intrusion into their idyllic expectations of love and marriage. (JR)  Agreements demonstrate a lack of trust. (JR)  Agreements dampen romance. (JR) 11

S OCIETAL V IEWS  Premarital agreements place 10/2/13 emphasis on the individual over the couple. (JR)  The wealthy may have an advantage over the less wealthy. (JR) 12

H OW TO D ISCUSS A M ARITAL A GREEMENT  Talk to your fiancé (RGK) 10/2/13  Work with a marital counselor (RGK)  Have the lawyers broach the topic for the first time (RGK) 13

3 K EY E LEMENTS TO A P RENUP  Timing (RGK) 10/2/13  Disclosure (RGK)  Independent Counsel (RGK) 14

T IMING  How far in advance must the 10/2/13 agreement be presented? (RGK) 15

D ISCLOSURES 10/2/13  What must be disclosed? (RGK)  Attach disclosures to the agreement so there is no question what was disclosed. (RGK)  The disclosure should give meaningful information about the party’s income, assets, and obligations. (RGK) 16

I NDEPENDENT C OUNSEL  Is the attorney “independent” if paid by 10/2/13 the other party? (RGK)  Can a party waive the right to counsel? (RGK)  What is required to show that an unrepresented party understood the prenup? (RGK) 17

G ENERAL L EGAL R EQUIREMENTS  Must be in writing and signed by both 10/2/13 parties. (RGK)  May agree on any matter regarding rights on death or divorce, not in violation of public policy. (JR) 18

P UBLIC P OLICY L IMITS  Child support. (RGK) 10/2/13  Child custody. (RGK)  Religious upbringing of children. (RGK)  Support of a spouse during marriage. (RGK)  Penalties for spouse not performing marital duties. (RGK) 19

B UILDING A S TRONG A GREEMENT  Avoid last-minute agreements. (JR) 10/2/13  Allow for changes.(JR)  Do not include provisions which violate public policy. (JR)  Follow the law in your state (e.g., the Uniform Premarital Agreement Act). (JR) 20

P ROPERTY I SSUES  No property vs. limited property rights 10/2/13 during marriage. (JR)  Lump sum payment? (JR)  Payment for each year of marriage? (JR)  Waiver of property rights in loan proceeds. (JR)  Waiver of rights resulting from efforts of spouse during marriage. (JR) 21

R ETIREMENT B ENEFITS  Federal law controls (JR) 10/2/13  Need to have waiver of those rights executed after marriage. (JR) 22

C HOICE OF L AW  Be aware of interstate and 10/2/13 international law issues when parties are living in separate places or where they contemplate moving. (JR)  Complex area. Consult with local counsel as to whether the agreement would be enforceable in that jurisdiction. (JR) 23

E NFORCEMENT IN O THER J URISDICTIONS  Every state and country different. 10/2/13 (JR)  Some countries do not honor premarital agreements. (JR)  Most countries have premarital regimes. (JR)  Advise client in writing to client you can only give advice on the law of your state. (JR) 24

D EFENSES  Unfairness is typically not a defense. (JR) 10/2/13  Duress. (JR)  Unconsionability (JR)  Procedural: The agreement was presented in a one- sided, take-it-or-leave-it fashion.  Substantive: The terms are so one-sided as to shock the conscience of the court.  Promotive of divorce? (JR)  Mistake of fact or law. (JR) 25

B URDEN OF P ROOF  The burden of proof is typically 10/2/13 on the party challenging the agreement. (JR)  California has a presumption of invalidity if certain preliminary facts are established. (JR) 26

O THER T RIAL I SSUES  Introducing a copy into evidence 10/2/13 when the original is not available. (RGK)  What happens when a party claims that his or her signature was forged? (RGK)  Requesting a trial on the validity of the agreement separate from the other issues in the case. (RGK) 27

A MENDING P RENUPS  Not a good idea, especially if your 10/2/13 state recognizes interspousal fiduciary duties. (JR)  Better to keep the prenup intact and do a postnup. (JR) 28

H OW P OSTNUPS ARE D IFFERENT  Treated with stricter scrutiny than 10/2/13 prenups. (RGK)  In some states, any postmarital agreement in which one party received property without consideration in an interspousal transaction is presumed to be the product of undue influence. (RGK) 29

R ETAINER A GREEMENT  May include advice to client about 10/2/13 the limits of prenups in the retainer agreement. (RGK)  Contact Richard G. Kent for sample CT prenup and retainer agreement (RGK) 30

H OW M UCH TO C HARGE  These agreements involve a lot 10/2/13 of risk. (JR)  What is that risk worth to you? (JR)  Typical fee arrangements. (JR)  Rich and famous (JR) 31

T HE F UTURE OF P RENUPS & P OSTNUPS  The Uniform Premarital and Marital Agreements 10/2/13 Act (UPMAA) (JR) 32

Jennifer M. Riemer jmr@walzermelcher.com 10/2/13 Richard G. Kent rkent@mbnllp.com 33